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(Kabul) – The Afghan government should reject a new law that permits indefinite detention of security suspects without trial, Human Rights Watch said today. A September 2015 amendment to the Criminal Procedure Code, imposed by presidential decree, allows Afghan authorities to detain for a renewable one-year period anyone suspected of “crimes against internal or external security,” or believed “likely to commit such a crime.”

President Ashraf Ghani speaks at the parliament house in Kabul on March 7, 2015. © 2015 Reuters

“Given President Ashraf Ghani’s sharp criticisms of United States practices at Guantanamo, it is incomprehensible why he would want to bring indefinite detention without trial to Afghanistan,” said Patricia Gossman, senior Afghanistan researcher. “Afghanistan needs to take steps to address terrorism and protect public safety, but not by denying Afghans the right to a fair trial.”

The Judicial Committee of the Wolesi Jirga, the lower house of parliament, has been considering the presidential decree since early October. Parliament has the power to veto the decree; if it does nothing, the decree remains law. The Judicial Committee may call for a hearing on the decree and invite legal experts to testify before a decision to reject or amend it.

Article 10 of the decree provides for preventive detention – indefinite detention without charge or trial – in the following circumstances:
  • A person suspected of terrorist crimes or crimes against internal or external security, when “gathering incriminating evidence is not possible,” but because of “strong indications or reliable information,” there is a “strong possibility” the person will commit a crime if released.
  • A person has served a prison sentence for a crime against internal or external security, but “there is a strong probability” that the person will again commit a crime if released.

The detention period is for one year, which can be renewed indefinitely upon the approval of the Supreme Court. The decree does not specify whether the detainee will have access to family members, the right to legal counsel in those proceedings, the right to examine the evidence, or the right to challenge that evidence in a fair proceeding. Detainees are to be “kept in a special place under the supervision of the prosecutor, separate from detention centers and prisons.” As of November, the government had not yet identified where these “special places” would be. Segregation of these suspects from the regular criminal justice system, without any provision for their access to counsel, raises the risk of torture or other ill-treatment.

Abusive measures such as indefinite detention and denying suspects access to lawyers have no place in Afghan law, even to confront a dangerous enemy.
Patricia Gossman

Senior Afghanistan researcher

“Torture is a long-standing problem in Afghan detention facilities,” Gossman said. “This presidential decree attempts to end-run the legal system and could put detainees at of risk of grievous, unlawful abuses.”

Preventive (or administrative) detention allows the government to deprive people of their liberty with no intent to prosecute the individual through the criminal justice system. International human rights law permits preventive detention only under narrow circumstances. By using such detention without trial for matters that fall within the existing criminal law, the government is able to avoid the scrutiny of an independent and impartial judicial system. Such laws are also frequently used to deprive individuals of fundamental freedoms – such as the rights to association, expression, and peaceful assembly – protected under international law. As such, preventive detention subverts the rule of law by granting executive authorities powers that should properly be the domain of the courts.

Other articles in the decree raise serious human rights concerns:
  • Article 3 requires members of the police or National Directorate of Security (NDS), Afghanistan’s intelligence service, to seek approval from “the relevant division of the Supreme Court” within five days of commencing “covert detective operations.” The decree allows the police and NDS in those five days to acquire information through means that otherwise violate the law, such as illegal wiretapping, and to use such information in prosecuting the case. The decree provides no penalties for operations deemed to be unlawful after they have begun.
  • Articles 4 and 5 amend the period during which a suspect can be held in police custody before being handed over to the prosecutor’s office from 72 hours to 10 days. Article 6 extends the period before the prosecutor needs to produce a suspect in front of a judge from 15 days until 30 days for a misdemeanor and 60 days for a felony charge. (Previously under the Criminal Procedure Code, the maximum number of days was 15.) Although international law does not impose specific limits on the length of time a person may be held before being charged, it is required to be done “promptly,” generally understood as no more than 48 hours between a suspect’s arrest and the time he or she is produced before a prosecutor or magistrate.

“Afghanistan’s progress on rule of law reform will take a big step backward if this new counterterrorism decree is kept in its present form,” Gossman said. “Abusive measures such as indefinite detention and denying suspects access to lawyers have no place in Afghan law, even to confront a dangerous enemy.”

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